The plaintiffs are the parents of the deceased. The deceased went rafting with the defendant Whitewater Adventures LLC and died. The parents sued the rafting company and its owner.

Prior to the raft trip the plaintiff signed a release. The plaintiffs argued the deceased had non time to read the release and was forced to sign the release. If she did not sign the release the deceased would not have been able to go rafting and would have been stuck in an “isolated area.” The court stated the deceased would have also lost her pre-paid ticket price if she failed to sign the release. The court commented on all of these issues and found them unpersuasive. However, the fact the court commented on the issues is important and something to be aware of in the future.

The court held that the deceased was informed that she had to sign a release and the fact she might be stuck in an isolated area was not oppression to force a signature on the release by the deceased.

However, this is not sufficient to constitute oppression or lack of meaningful choice, particularly insofar as Sandra had been given a brochure before the rafting trip in which Whitewater Adventures stated: “[w]e require all trip participants to sign a liability release*968 waiver before embarking on your trip.”

The plaintiffs are also argued the release was unconscionable. The court found that unconscionability is a two part test. Failing to find both tests are met will violate the release. Here the court found:

Substantively, it is not unreasonable or unexpected for an organizer of adventure sports to reallocate risk to the participants through a liability waiver. Procedurally, there were no hidden terms in the liability release….

So?

Give your guests plenty of time to read and sign the release

Give your guests their money back if they don’t sign the release

Let your guests know, in advance, that they must sign a release before they can go rafting.

When a court lists items raised by the plaintiff as issues and comments about them, it is good for the immediate case. However it can also be picked up by other plaintiffs and other courts and used as a way to void your release in other decisions.

On a moral basis if you are as an operator of a business or program and someone finds out they do not want to engage in your activity, happily give them back their money.

Put on your website that participants will have to sign a release and put the release on the website also. With the new laws concerning electronic signatures of contracts you can even have your guests sign the release online. Let your customers know in advance what they are going to be undertaking so they do not have issues or questions in your office the day of the activity.

35 Years of Outdoor Retailer

James Moss JD, Author

Recognized as the Go to Lawyer by the Outdoor Recreation Industry

The outdoor industry’s favorite lawyer, Moss has been known to don a toga at a show party and he learns from what he observes on the show floor. “Attending a trade show year after year allows you to watch the industry evolve, grow, change and sometimes shrink,” he says. “It shows you new sports, new activities, and new ways to get sued. Outdoor Retailer is both a barometer and an education in the outdoor recreation industry.”